Week 7: The Presidency

POLSCI 116

Last week

Congress

  • Single-minded seekers of re-election
  • Congress as an institution
  • How bills become laws

This week

The Presidency

But first

Lee’s (2016) argument re: cause of congressional polarization?

Competition for control of the chamber reduces incentive to cooperate.

But first

Why is being in the majority good, other than passing bills?

Control of committees, status, gatekeeping

But first

How to “clarify the partisan choice”?

Develop proposals that a) poll well; b) unite the minority party; and c) divide the majority party

But first

“Messaging bill”?

A bill intended to make the opposing party look bad / show that you need more power to get good things done, rather than to become law itself.

But first

Expected turnover among congressional staff (+/- 10 pp)?

65%

But first

Collective action problems re: congressional “brain drain”?

Multiple possible correct answers, here’s what I thought of:

  • Underfunding public sector labor –> top talent to private sector
  • Individual re-election incentives cut against increasing legislative capacity

Quick Refresher

What is power?

  • Making decisions that affect others’ behavior
  • Structuring the agenda
  • Altering others’ frames of reference

The president exercises power, with limits, in all three ways.

What is a President?

  • Chief Executive
  • Commander in Chief of the Armed Forces
  • National leader
  • Party leader
  • Celebrity
  • Person

Nuts and Bolts of the Presidency

  • At least 35 years old
  • Natural-born citizen (no naturalized immigrants)
  • Resident for at least 14 years
    • Diplomats need some domestic experience

Nuts and Bolts of the Vice Presidency

“…the most insignificant office that ever the invention of man contrived or his imagination conceived.” - John Adams

  • Same eligibility requirements, none of the power
    • Preside over the Senate (except during impeachment trials)
    • Break ties in the Senate
    • Other tasks assigned by president
    • President can temporarily delegate authority if needed (25th Amendment)
  • Typically selected to “balance” ticket in campaign

Nuts and Bolts of the Cabinet

Heads of executive departments (will talk about them more next week)

Not many specifics in Constitution:

  • Refers to “the principal Officer in each of the executive Departments”
    • Which departments?
    • What to the principal officers get to do?
  • Washington set up what we recognize as a cabinet system
  • Legislation establishes agencies; presidents decide which offices are “cabinet-level”

Presidential Authority

Armed Forces

  • President freest to act in foreign policy
  • “Take care” clause in tension with Congress’s formal war declaration power
    • Congress hasn’t formally declared war since 1941. And yet.
  • Vietnam War (remember the Pentagon Papers?): War Powers Resolution
    • Passed over Nixon’s veto
    • President has to notify Congress after sending troops
    • Congress can vote to authorize their use/bring them back
    • Continuing tensions between President and Congress here

Presidential Authority

Appointments

  • Arguably most consequential domestic power (will come up more next week)
  • Senate confirms many appointees:
    • Cabinet, ambassadors, judges, e.g.
    • Recess appointments (limited term and maneuvers to stop them)
    • Evolving norms re: when appointments get blocked

Presidential Authority

Veto

  • Some at Convention opposed veto power, others wanted final veto
    • Compromise: veto with Congressional override
  • Threat of veto adds to its power
  • Signing statements
    • Informal statement regarding interpretation/implementation
  • “Pocket” veto
    • Inaction for 10 business days with Congress adjourned
      • Congress can stay in session to prevent this
  • “Line-item” veto ruled unconstitutional
    • Some state governors have this power

Presidential Authority

Convening Congress

Used sparingly for agenda setting

Presidential Authority

Trade agreements and diplomacy

  • 2/3 approval in Senate (rejection rare)
  • “executive agreements” if Senate ratification looks unlikely
    • not binding for the next administration
  • “receive ambassadors” –> recognition of other nations
    • small words/actions can take on huge meaning

Presidential Authority

Pardon/commutation/reprieve

  • What’s the difference?
    • Pardon: erases conviction, full restoration of rights
    • Commutation: keeps conviction, lessens sentence
    • Reprieve: delays sentence
  • Limits:
    • Federal offenses only
    • Can’t use in cases of impeachment
    • Blanket pardons?
    • Preemptive pardons?
    • Self-pardons?

Presidential Authority

“Take Care” clause

  • Open to interpretation / ambiguous
  • Used to justify unenumerated powers of the presidency

Presidential Authority

Executive privilege

  • Assertion of exemption from oversight
  • Unclear where the lines are (U.S. v. Nixon)
  • Tradeoff between
    • benefits of privacy
    • oversight capacity

Roots of the Presidency

  • Colonies: royal governors with executive power
    • Powers included veto, appointments, military command, spending, (some) pardons, and lawmaking
    • Tensions with elected colonial legislatures
    • Represented monarchy’s executive authority
  • Immediate post-revolution government very much a reaction to this
    • Many states stripped governors of most formal powers
    • Articles of Confederation: no national executive
  • Need for stronger executive a key driver of Constitutional Convention

The Presidency at the Convention

  • One or more chief executive(s) at a time?
  • How to select?
  • Terms? Term length? Re-election?
  • How to remove for bad behavior?
  • Veto power? How expansive?

George Washington in the background made some of these debates easier

The Early Presidency

Key features of Washington’s presidency:

  • Put down Whiskey Rebellion
    • Federal supremacy in military + taxation
  • Established Cabinet system
  • Asserted power to negotiate treaties
    • Senate gets approval but not input
  • Claimed inherent powers of diplomacy
    • Neutrality between French and British, e.g.
    • Jefferson claimed similar powers for Louisiana Purchase

The Early Presidency

Still,

  • Congress remained “first branch”
  • President manager of small bureaucracy

Key Norms: Two Terms

Having a broadly popular general around to hand executive authority over to is a double-edged sword

No rule against Washington getting re-elected every four years for the rest of his life…and yet!

A Norm that Failed: Nonpartisanship

Washington’s farewell address: parties are bad.1

“They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community.”

“They are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people….”

Well then.

Key Norms: Transfer of Power

Adams and Jefferson were good friends, but their campaigns against each other (1796 and 1800) were nasty

1796:

  • Jefferson’s surrogates called Adams (“His Rotundity”) a monarchist
  • Adams’s surrogates accused Jefferson of having an affair with his slave and called him an abolitionist.
  • Adams won, but quirks in Electoral College (with some meddling from Hamilton) made Jefferson VP.

Key Norms: Transfer of Power

1800:

  • Jefferson pamphleteer James Callender on Adams: “hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.”
    • Also claimed, baselessly, that Adams wanted to start a war with France
    • Callender went to jail for slander under the Alien and Sedition Act
  • Adams surrogates claimed Jefferson had run from the British, was an atheist, and would promote prostitution, incest, and adultery if elected.

But when Jefferson won, Adams packed up and went home.

The Monroe Doctrine (1823)

Early articulation of the “imperial” presidency:

  • Buried in annual address to Congress
  • Warned European powers to stay out of Western hemisphere
    • Separate “spheres of influence”
    • European colonization in West would be considered hostile to U.S.
  • Lacked teeth at the time
  • (Teddy) Roosevelt Corollary: U.S. can intervene in Western hemisphere

Jackson

Structural changes:

  • More states, expanded franchise
    • More populist political terrain
    • Developing party system

Jackson

Expansion of presidential powers:

  • Trail of Tears
  • Use of appointment power for patronage
    • Strengthened party system
  • Assertion of federal supremacy over states
    • vs. SC/Calhoun’s nullification of tariffs

Lincoln

Presidency during crisis:

  • Suspended habeas corpus
  • Expanded U.S. Army beyond congressional ceilings
  • Blockaded southern ports without congressional approval
  • Censored the mail, jailed critical newspaper editors

Claimed inherent power to do all of this. Supreme Court ruled otherwise after it no longer mattered.

Development of the Modern Presidency

Great Depression:

  • New Deal expansion of presidential power in domestic politics
    • Granted federal government power to intervene in the economy
      • Remember Court packing threat
    • Expanded bureaucracy
      • Executive Office of the President
      • New agencies (SSA, NLRB, SEC, FHA, FDIC, e.g.)
  • Innovations in communication (radio)

Development of the Modern Presidency

Zooming in on the Executive Office of the President…

  • Most of “The White House” is actually down the block in the EEOB
  • EOP includes (among others)…
    • Council of Economic Advisers
    • Office of Management and Budget
    • Homeland Security Council
    • Office of Science and Technology Policy
    • National Security Council
    • Domestic Policy Council
    • …and more

Development of the Modern Presidency

World War II and aftermath:

  • U.S. as global superpower
  • Cold War expansion of standing military establishment
    • Broadened scope of foreign policy
    • New bureaucracy
      • DoD and CIA (1947)
      • NSA (1952)
    • Increased funding

Development of the Modern Presidency

Result: President takes on bigger role as national leader:

  • New mechanisms to communicate directly to people (radio, TV)
  • Claimed “mandates” to enact policy agendas
  • Embodiment of larger national government
    • “Buck Stops Here” - expanded scope of responsibility for national government

Development of the Modern Presidency

Eisenhower’s farewell warning:

“American makers of plowshares could, with time and as required, make swords as well. But we can no longer risk emergency improvisation of national defense; we have been compelled to create a permanent armaments industry of vast proportions.”

“Now this conjunction of an immense military establishment and a large arms industry is new in the American experience…In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex.”

Presidential Power

Neustadt: “Presidents have very little formal power, far less than necessary to meet the enormous expectations heaped on them during the modern era.” And yet, the president sure looks extremely powerful.

What’s going on here?

Presidential Power

Neustadt: “presidential power is the power to persuade.” What do they mean?

Informal power, however expansive, can only be exercised informally.

  • One principal, many agents

“He’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike – it won’t be a bit like the Army.” - Truman

Paradox in Presidential Power

A key implication from Neustadt: Presidential power is weakest when it is most observable.

Let’s take a second to talk about this.

Going Public

Indirect exercise of power: directing attention to an issue by talking about it

President can set the agenda

When the president talks about an issue…

  • The media talks about it
  • People think about it
  • This can put pressure on Congress

Going Public: Relevant Factors

Dynamics that affect the president’s power to set the agenda?

  • Attention
    • More media choice (cable, internet) –> more people tune out of politics
      • Those left listening are most engaged / least persuadable
  • Presidential approval
    • Low approval, low pressure
  • Substantive issue
    • Works better for popular ideas!
  • Point in office
    • Less power later in (second) term

Break

Following up

Origins of pardon power:

  • Short version: holdover from Britain
    • Crown + royal governors had pardon power
    • US provision traced to Hamilton
  • But! Debate at VA ratifying convention
    • George Mason (anti-federalist) objected
      • President can protect criminals close to them
    • Madison: if so, Congress can impeach

Following up

That hasn’t happened, but something related has.

Voters can sanction.

Reading assignment answers

Tradeoff Congress faces with delegation?

  • Not enough delegation can make it difficult to respond to changing circumstances without new legislation
    • And members might not want to tie themselves to unpopular specifics
  • Too much delegation gives the president wide latitude to do things Congress didn’t intend

Reading assignment answers

How do executive orders differ from laws?

  • Need to ground authority in existing law
  • Next president can unilaterally reverse

Reading assignment answers

Three formal procedures Presidents can use to influence laws without vetoing them?

  • Impoundment (withholding funds Congress allocates)
    • Barred by legislation
  • Signing statement (clarifying interpretation)
    • Constitutional
  • Line-item veto (vetoing specific parts of a bill)
    • SCOTUS ruled unconstitutional

Partial credit for veto threat (not formal)

Reading assignment answers

Necessary conditions for presidential orders to be “self-executing”?

  • No ambiguity that the president has spoken
  • Clarity of meaning
  • Publicity
  • Capacity
  • Jurisdiction (“what he wants is his by right”)

Reading assignment answers

Why are “self-executing” orders a last resort?

Costly and typically only necessary when lighter efforts of persuasion have failed

  • “Command is but a method of persuasion, not a substitute.”

Reading assignment answers

Eisenhower’s tradeoffs between technological progress and democracy?

  • Institutionalization of the military
  • Expansion of federal funding for scientific research
    • Less individual innovation in favor of government-directed projects
    • Risk of policy capture by technocrats

The Unilateral Presidency

A lot’s changed since 1960.

Expanded scope of federal government + “take care” clause = broad discretion

  • Limited specifics on what president can’t do
  • Presidents can use ambiguity to act unilaterally
  • Just need a tie-in to an existing law
    • And there are a lot of laws available!

The Unilateral Presidency

Examples?

  • Emancipation Proclamation
  • Japanese internment
  • Desegregation of the military
  • Wars/military intervention post-WWII
    • Korea, Vietnam, Honduras, Chile, Panama, Iraq (x2), Afghanistan, etc.
  • Deferred Action for Childhood Arrivals (DACA)
  • Paris Climate Agreement

The Unilateral Presidency

Unitary executive theory: because Constitution makes president Commander in Chief, they can…

  • Send troops where they want
  • Direct the Treasury to pay for them
  • Without Congress authorizing deployment or spending

Recent tensions between president and Congress (Libya 2011, Syria 2012-2017, Yemen 2018-2019, Iran 2020)

The Unilateral Presidency

Defense Production Act (1950)

President can invoke DPA to…

  • prioritize federal contracts
  • require companies to set aside resources
  • direct companies to maintain specific production

Allowed for federal response to COVID-19 prior to legislation

An Unsettled Case: Debt Ceiling

Who can tell me what the debt ceiling is?

Statute that sets a cap on how much the government is allowed to borrow in order to meet existing obligations.

An Unsettled Case: Debt Ceiling

Legal and practical tensions.

If U.S. defaults on debt, global economy crashes.

An Unsettled Case: Debt Ceiling

1788-1917: No debt ceiling. Treasury bonds authorized individually by statute.

1917 (during WWI): Second Liberty Bond Act

  • Delegates authority to executive (Treasury) to issue bonds/other forms of debt
    • Provided they stay below specific limits for specific types of debt.

1939-1941: Public Debts Acts (amended through the 50s)

  • Consolidate different types of debt
  • Formalize/periodically raise debt ceiling.

1950s-1974: Debt ceiling increases used as opportunity to debate budgetary priorities

  • Budget reforms in 1974 made Congress’s spending authorization more explicit

An Unsettled Case: Debt Ceiling

Between 1979-1995, “Gephardt Rule” automatically raised debt ceiling when budget passed.

Between 1995-2010ish, periodic increases a norm.

More recently (beginning 2011), debt ceiling used as leverage to negotiate policy concessions from president. Why?

An Unsettled Case: Debt Ceiling

So here’s the tension:

  • 14th Amendment: U.S. always pays its debts
  • Existing statutes make spending commitments
    • President must “take care” that these statutes are “faithfully executed”
    • Congress has banned impoundment
  • But debt ceiling limits money available to pay debts

What can the president do when Congress authorizes less spending than it has mandated?

An Unsettled Case: Debt Ceiling

President’s options without increase:

  • Print the money? Risk inflation, also Fed vs. Treasury issue
    • Theorized workarounds:
      • minting platinum coins
      • zero-principal bonds (that pay interest)
  • Ignore the debt ceiling, keep spending…and get sued
  • Adhere to debt ceiling, triage spending…and get sued

An Unsettled Case: Debt Ceiling

So far, debt ceiling standoffs (2011, 2013, 2021, 2023) have resulted in deals with Congress.

But (Democratic) presidents have faced increasing pressure to act unilaterally.

Unclear how that would resolve.

Additional Presidential Advantages

  • Congressional power is collective, presidential is individual
  • Delegation risks principal-agent problem
    • President especially difficult to control as an “agent”
  • President appoints Supreme Court
    • Congress is getting more assertive here
      • But not from POV of Congress as an institution
  • President can act as first mover

First Mover Advantage

Let’s consider this in spatial terms (from Howell and Moe)…

Where do these policies land if Congress moves first? What if the president moves first?

First Mover Advantage

Let’s consider this in spatial terms…

Limits of First Mover Advantage

Why might the president consider moving first a last resort?

Laws are “sticky,” executive orders can be undone.

For the Remaining Time

Divide into groups of five. I’ll give you a modern president.

Go to https://www.presidency.ucsb.edu/advanced-search

  • Search for signing statements (in document category checklist) issued by the president I gave you.
  • Find one that raises questions about constitutionality or potential conflicts with other laws.

Prepare to share with class:

  • The substance of the bill being signed (teach us about the issue!)
  • The sentiments expressed in the signing statement
  • Potential deviations in implementation from Congress’s intent